NLRB Issues Memo on Mitigating Back-Pay

The National Labor Relations Board on October 3 reaffirmed that when litigating whether illegally discharged workers conducted a reasonable search for work, an employer must demonstrate that substantially equivalent jobs were available in the relevant geographic area.

In 2007, the NLRB for the first time placed on its general counsel the burden of rebutting an employer’s evidence that the worker failed to mitigate back-pay damages, by producing competent evidence that the employee took reasonable steps to seek those jobs. St. George Warehouse, 351 N.L.R.B. No. 42, 183 LRRM 1235 (2007); 196 DLR A-6 (10/11/07).

The NLRB general counsel’s office last month explained that its attorneys bear the initial burden of proving the amount of gross back pay the worker would have earned had he or she not been illegally discharged. The employer then has the opportunity to prove an affirmative defense to reduce the amount of back pay owed, which includes arguing that the worker did not make reasonable efforts to mitigate damages by finding interim work. The general counsel explained that its attorneys should be prepared to rebut the employer’s evidence by showing that "differences in specifics, such as location, type of work, rate of pay and other working conditions may demonstrate that the employer’s proffered evidence does not establish that the jobs were substantially equivalent." Guideline Memorandum Concerning St. George Warehouse, Office of Gen. Counsel, GC 09-01 (10/3/08).

Impact: Employers retain the ultimate burden of proof in showing a lack of diligence on the employee’s part in looking for work. To prove an employee’s failure to mitigate back-pay damages, an employer must show that substantially equivalent jobs were available in the relevant geographic area during the relevant period. When conducting an investigation regarding the availability of jobs, employers are encouraged to obtain data from the Labor Department’s Bureau of Labor Statistics and to interview state and local government officials about the availability of employment for those with similar skills and experience.